Vicki Ann Ferraris v NSW Police

Industrial Relations Commission (NSW)|2005-07-20|Before: Grayson DP

CITATION: Vicki Ann Ferraris v NSW Police [2005] NSWIRComm 240

Vicki Ann Ferraris PARTIES: New South Wales Police

CATCHWORDS: Unfair dismissal - Probationary police officer - Drink-driving offence - Local Court conviction - Fine and two year license suspension - First offence - Allegations of prior alcohol related issues - Allegations of improper use of office at time of arrest - Allegations of drink-driving by fellow police officer said to be false - Alleged threats of violence by firearm - Show cause notice and dismissal order limited to drink-driving offence only - Other allegations contained in material served on applicant during course of proceedings - Procedural fairness - Obligation on employer to disclose matters taken into account in decision to dismiss - Show cause notice misleading - Harshness of ultimate sanction of dismissal - Disproportionate to gravity of misconduct - Personal and economic circumstances of applicant - Single parent residing with two children in friend's garage - Inconsistent approach by employer in other arguably more serious and culpable cases - Jurisdictional issue raised at conclusion of hearing - Whether probationary police officer exempted from unfair dismissal jurisdiction - Statutory interpretation - Held - Application beyond jurisdiction - Dismissal otherwise procedurally and substantively unfair - Application dismissed as incompetent - Reinstatement order conditionally made.

Industrial Relations Act 1996 Industrial Relations (General) Regulation 2001 Industrial Relations Act 1988 (Cth) Industrial Relations Regulation (Cth) LEGISLATION CITED: Police Act 1990 Police Regulation 2000 Road Transport (Safety and Traffic Management) Act 1999

Ryan v Furneys Stockfeeds Limited (1996) 66 IR 298 Suttling v Director General of Education (1986) CLR 427 Mann v Ross and Others (1999) 97 IR 385 CASES CITED: Byrne and Frew v Australian Airlines (1995) 185 CLR 410 Hosemans v NSW Police (No 3) [2005] NSW IRComm 161

Mr L Nicholls solicitor of Walter Madden Jenkins, solicitors for the Applicant LEGAL REPRESENTATIVES:

Mr R Reitano of counsel instructed by Ms B Batra, solicitor, Legal Services, NSW Police for the Respondent

Application by Vicki Ann Ferraris re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

1 On 27 August 2004 following successful completion of the prerequisite stages of the Diploma of Policing Practice, the Applicant attested from the NSW Police College at Goulburn. Shortly thereafter, she commenced duties as a probationary constable assigned to the Shoalhaven Local Area Command and working from Nowra Police Station. Her period of probation was expressed to be for one year in accordance with the provisions of s 73(2) of the Police Act 1990 and clause 13 of the Police Regulation 2000. 2 On 29 September 2004, whilst driving her private motor vehicle the Applicant was stopped by police and subjected to a roadside breath test. The test indicated a blood alcohol content in excess of that prescribed for the purposes of the Road Transport (Safety and Traffic Management) Act 1999. The Applicant was arrested and taken to Nowra Police Station where she submitted to a breath analysis which revealed a high range prescribed concentration of 0.160 grammes of alcohol per 100 millilitres of blood. The Applicant was charged, issued with a Notice of Suspension and Confiscation of Drivers Licence and required to attend Nowra Local Court on the appointed date. 3 She was returned to work on restricted duties and on 13 December 2004, pleaded guilty to and was convicted of the relevant offence. In the result, she was fined a total sum of $1693 and disqualified from holding a driver's licence for two years with eligibility to undertake the so-called Interlock Driving Programme after six months. 4 Following the conviction and presumably in consequence thereof, the Applicant was suspended without pay pending investigation or further investigation of her fitness to continue as a probationer. 5 On 22 December 2004, she was served with a notice to show cause why she should not be dismissed from employment under section 73(3) of the Police Act 1990. The Applicant elected to provide and on or about 18 February 2005, provided a written response to the show cause notice. The allegations to which she was initially invited to respond were expressed as follows: i) It is alleged that about 4.15am on Wednesday 29 September 2004 you drove a motor vehicle whilst there was present in your blood the high range prescribed concentration of alcohol.

ii) It is further alleged that when police spoke you to you (sic) made a false allegation that Senior Constable Kneeshaw was affected by alcohol while driving a motor vehicle.

By arrangement through her solicitors on 9 February 2005, the Applicant was not required to respond to the second allegation. 6 At all events, on 14 March 2005 the Applicant was served with a dismissal order in the following terms: I, David Barry Madden, Deputy Commissioner, Operations, having considered your conduct and the issues outlined below, am of the view that you should be dismissed from employment as a probationary constable with the New South Wales Police pursuant to Section 73(3) Police Act 1990.

By this Order I remove you from the New South Wales Police. In reaching my decision I have given careful consideration to the matters in the Show Cause Notice. I am satisfied that the following matter demonstrates your failure to meet the standards required by NSW Police in order to hold the office of Constable of Police, namely - 1. Conduct and Integrity in that: a) About 4.15am on 29 September 2004 you drove a motor vehicle with the high range of prescribed concentration of alcohol Your dismissal takes effect from the date of this order. You will be paid two weeks salary in lieu of notice. Your final pay, including any annual leave accrued to the date of termination, will be deposited to your account as soon as possible.

You should return all items of uniform, study notes and any other items or property belonging to NSW Police issued to you, to the Commander, Shoalhaven Local Area Command. As arrangements to release monies owing to you at the time of termination cannot be made until all such items have been returned, it is in your interest to do so promptly. 7 At hearing and in addition to documentary material tendered and relied upon by the respective parties, affidavit evidence was taken from the following witnesses: · Probationary Constable Vicki Anne FERRARIS, the applicant · Leading Senior Constable Carlos FATIMA, the arresting officer · Sergeant Steven JOHNSON, Leadership Development Directorate, NSW Police College · Chief Superintendent Gregory MOORE, Director Foundational Studies, NSW Police College 8 Both the Applicant and Leading Senior Constable Fatima were required for cross-examination. 9 At the conclusion of evidence Mr Reitano of counsel for the Respondent raised a jurisdictional issue which both he and Mr Nicholls, solicitor for the Applicant agreed, has not been judicially considered to date. It is convenient therefore to deal with that issue at the outset and in so doing, I note that Mr Nicholls when offered an opportunity to consider his position, the jurisdictional issue having only been raised by the Respondent at the heel of the hunt, indicated a preparedness to meet the argument on the basis that it had been foreshadowed to him by Mr Reitano as a matter of courtesy the previous evening thus permitting adequate opportunity for legal research. 10 The Respondent contends that the Commission is without jurisdiction to deal with the application by reason of the operation of the exclusionary provisions of s 83(2)(b) of the Industrial Relations Act 1996 and clause 6(1)(c) of the Industrial Relations (General) Regulation 2001 which are expressed respectively in the following terms: 83(2) [Exempted by regulations] This Part does not apply to an employee who is exempted from this Part by the regulations. Any such regulation may only exempt specified classes of employees included in any of the following classes: (a) employees engaged under a contract of employment for a specified period of time or a specific task, (b) employees serving a period of probation or qualifying period (c) employees engaged on a casual basis for a short period, (d) employees whose terms and conditions of employment are governed by special arrangements providing particular protection in respect of termination of employment either generally or in particular circumstances, (e) employees in relation to whom the operation of the provisions of this Part causes or would cause substantial problems because of: (i) their particular conditions of employment, or (ii) the size or nature of the undertakings in which they are employed. (emphasis added)

6(1) [Classes of employees] For the purposes of section 83(2) of the Act, the following classes of employees are exempted from Part 6 of Chapter 2 of the Act: (a) employees engaged under a contract of employment for a specified period of time, if the specified period is less than 6 months, (b) employees engaged under a contract of employment for a specific task, (c) employees serving a period of probation or qualifying period, if the duration of the period, or the maximum duration of the period, is determined in advance and either: (i) the period, or the maximum duration, is 3 months or less, or (ii) if the period, or the maximum duration, is more than 3 months - the period, or the maximum duration, is reasonable having regard to the nature and circumstances of the employment, (d) employees engaged on a casual basis for a short period except employees who: (i) are engaged by a particular employer of on a regular and systematic basis for a sequence of periods of employment during a period of at least 6 months, and (ii) would, but for the dismissal, have had a reasonable expectation of continuing employment with employer. 6(2) [Application of clause] This clause applies only with respect to dismissals under contracts of employment entered into on or after 1 October 1997. (emphasis added) 11 Mr Reitano submits as a primary proposition and Mr Nicholls concedes that the period of one year's probation is reasonable having regard among other things to the nature and special circumstances of police work and also to the provisions of the Police Act 1990 and the Police Regulation 2000 which are relevantly expressed as follows: - 73 Appointment of constables (1) The Commissioner may, subject to this Act and the regulations, appoint any person of good character and with satisfactory educational qualifications as a police officer of the rank of constable. (2) A person when first appointed as such a police officer is to be appointed on probation in accordance with the regulations. (3) The Commissioner may dismiss any such probationary police officer from NSW Police at any time and without giving any reason (emphasis added)

and 13 Appointment of constables on probation (1) In accordance with section 73(2) of the Act, a person when first appointed as a police officer of the rank of constable is to be appointed on probation: (a) for a period of 1 year, or (b) for such longer or shorter period (being not less than 6 months) as the Commissioner may direct in the case of that person.

(2) Despite subclause (1), the Commissioner may direct that the period of probation be less than 6 months, or may waive the period of probation completely, if the person has previously served as a police officer in NSW Police or in any other police service or police force (however called). (3) All or any part of such previous service may, with the approval of the Commissioner, be counted towards seniority. (emphasis added) 12 Mr Reitano further contends by reference to the decision of Beazley J in Ryan v Furneys Stockfeeds Limited (1996) 66 IR 298 that the application of the exclusion in clause 6(1)(c) of the Industrial Relations (General) Regulation 2001 is not confined to cases where the probationary period is found in a term of a contract of employment. In Ryan's case, her Honour applied the expressio unius rule in construing the exclusionary provisions of the Industrial Relations Act 1988 (Cth) and the Industrial Relations Regulation (Cth) which whilst not identical, are relevantly analogous here. In so doing, Beazley J concluded as follows at 302: This submission involves an application of the expressio unius maxim of statutory interpretation. Pearce and Geddes, Statutory Interpretation in Australia (4th ed), par [4.22] state the maxim in these terms:

"It is a reasonable assumption that where legislation includes provisions relating to similar matters in different terms, there is a deliberate intention to deal with them differently." The maxim is to be used with care. In Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW) (1982) 148 CLR 88 Stephen, Mason, Aicken, Wilson and Brennan JJ stated (at 94):

"The maxim must always be applied with care, for it is not of universal application and applies only when the intention it expresses is discoverable upon the face of the instrument ." It is not to used if to do so would bring about a result unintended by the legislature: see Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 574-576. In my opinion, the expressio unius rule does apply here. Paragraphs (a), (aa) and (b) relate to specific contracts of employment. If a contract of employment falls within the terms of any of these paragraphs it is excluded from the operation of Div 3 Pt VIA of the Act. There is nothing in the language of par (c) to indicate that it should be confined to cases where it is satisfied by a term of a contract of employment. This construction is reinforced by the Act itself. Division 3 of Pt VIA of the Act is not confined to cases which are only governed by a contract of employment. It equally applies where an award also operates in respect of the employment. Accordingly, if, under an award, the employment satisfies the conditions of reg 30B(1)(c), an employee is excluded from the operation of Div 3 of Pt VIA of the Act. 13 The broader operation of clause 6(1)(c) of the Regulation in this State may thus be seen in contradistinction to the operation of the narrower provisions of clause 6(1)(a) and 6(1)(b) each of which rely for their satisfaction, upon the existence of a contract of employment of the kind therein specified. 14 Mr Reitano argues that even though the relationship between the Applicant and the Respondent in this case may be seen as contractual, the contract must not be inconsistent with the statute namely, the Police Act 1990 the provisions of which directly affect the relationship and to the extent that the statute regulates the relationship it is idle to inquire whether there is a contract which embodies the terms and provisions of the relationship (see Suttling v Director General of Education (1986) CLR 427 per Brennan J at 437-438 with whom Dean J agreed). Clearly on the evidence in this case, there can be no serious issue that the duration of the period of probation was determined in advance as clause 6(1)(c) of the Regulation requires. This is so because the Police Regulation 2000 and the Conditional Offer of Employment to which reference is made in Superintendent Moore's affidavit both prescribe a twelve-month period of probation and both predate the Applicant's employment. Mr Reitano submits, absent any dispute, that the period of probation is reasonable; that the provisions of clause 6(1)(c) of the Regulation operate to deprive the Commission of jurisdiction in the present matter and that the application for relief from unfair dismissal is therefore incompetent. 15 Mr Nicholls for the Applicant submits that police officers are not employed by the Commissioner of Police or by NSW Police but rather, are Crown employees engaged in the manner of employment dealt with in Suttling's case. He further submits that police officers are appointed to the office by the Police Act 1990 and are not covered by a contract of employment, the exceptions being the Commissioner and persons holding executive office under Pt 5 of the Police Act 1990. This is so, Mr Nicholls argues, notwithstanding the provisions of s 84 of the Police Act 1990 which deem the Commissioner to be the employer of non-executive police officers for the purpose, broadly stated, of industrial proceedings such as these. Mr Nicholls contends in such circumstances firstly, that the Industrial Relations (General) Regulation 2001 at clause 6(2) extracted above operates in the absence of an employment contract, to preclude probationary police from the exemption provisions of the clause and secondly, that if the legislature had intended to deny probationary police access to the unfair dismissal jurisdiction, it would have made express provision for such exclusion in the Police Act 1990 in the same way as it did in s 89 of that Act in relation to the appointment or failure to appoint persons to vacant non-executive positions (such matters being expressly beyond the reach of the Industrial Relations Act 1996) and in the same way it did in s 83(3) of the Industrial Relations Act 1996 relating in particular, to executive police officers. 16 It may also be observed at this point although not dealt with on either side of the record in the course of debate, that the provisions of s 218 of the Police Act 1990 and s 405 of the Industrial Relations Act 1996 also apply in defining the reach or as in this case, the limits of the Commission's jurisdiction with respect to public sector employees generally and police officers in particular.

The Police Act 1990 is relevantly expressed as follows: 218 Industrial Relations Act 1996 not affected (1) The Industrial Relations Act 1996 is not affected by anything in this Act. (2) Subsection (1) does not limit section 44 or 89 or any provision of the Industrial Relations Act 1996

The Industrial Relations Act 1996 is relevantly expressed in these terms: 405(1) [Commission award or order has no effect] Any award or order of the Commission does not have effect to the extent that it is inconsistent with: (a) a right of appeal under the Government and Related Employees Appeal Tribunal Act 1980 or the Police Service Act 1990 , or (b) a function under the Police Service Act 1990 with respect to the discipline, promotion or transfer of a police officer, or with respect to police officers who are hurt on duty. 405(2) [Regulations] The regulations may provide that an award or order of the Commission has effect despite any right or function referred to in subsection (1) 405(3) [Unfair dismissal provisions not affected] This section does not affect any decision of the Commission under Part 6 of Chapter 2 (Unfair dismissals).

In the absence of argument or authority to the contrary and without an any way attempting to establish any rule or principle of more general application, it seems to me in the circumstances of this case that those provisions serve to emphasise the intention of the Parliament that the Commission's unfair dismissal jurisdiction is unaffected by statutory provisions which may otherwise constrain the Commission in its power to make binding awards or orders inconsistent with rights or functions referred to in s 405(1) of the Industrial Relations Act 1996 . That being so, the provisions of that Act apply in as much as they preclude access to the unfair dismissal jurisdiction by probationary police officers. 17 In my opinion and after carefully considering the arguments on both sides of the record, the proposition for which Mr Reitano contends has been made out. This is so for the reasons set out above and also because the existence or non-existence of a contract of employment is not the fulcrum about which the operation of clause 6(1)(c) turns and further because on the authorities the provisions of the clause are enlivened by the existence of a probationary period regardless of whether the probationary period is fixed by a contract of employment or by an award or in this case, by statutory prescription. 18 In the event that the statute so plainly determines in advance of employment that a period of probation will apply to newly-appointed police constables, it is not to the point whether there is in existence at the time of commencement of the relationship, a contract of employment embodying its terms. It is sufficient that the statutory prescription as to probation applies and where as here, there is no contest as to the reasonableness of the period of probation fixed by statutory means (see for example, Mann v Ross and Others (1999) 97 IR 385) there is no reason to doubt that the exclusionary provisions of clause 6(1)(c) of the Regulation apply. 19 In so concluding, it may be accepted I think, as Mr Reitano submits, that the provisions of clause 6(2) of the Regulation do not operate to limit the scope of clause 6(1)(c) to dismissals under specific contracts of employment. Rather the provisions of clause 6(2) seem to me to limit the scope of clause 6(1)(a) and 6(1)(b) to dismissals under only those contracts of employment of the kind specified which came into existence on or after the date prescribed by clause 6(2) namely, 1 October 1997. Mr Nicholls' argument as to the effect of clause 6(2) must therefore be rejected. Another indicator of the legislative intention to deprive probationary police of any remedy in unfair dismissal may arguably be the provisions of s 73(3) of the Police Act 1990 to which Mr Reitano points and which on their face, permit the Commissioner to dismiss the probationer at any time and without giving any reason thus suggesting that rights which if denied in other circumstances may constitute significant procedural unfairness, are relevantly non-existent in the case of probationary police officers. 20 In all the circumstances, and for the reasons set out above, I am unable to conclude as Mr Nicholls contends that the exclusionary provision of s 83(2)(b) of the Industrial Relations Act 1996 together with clause 6(1)(c) of the Industrial Relations (General) Regulation 2001 have no application to probationary police officers and if that be so, the present application is incompetent and must be dismissed. I make that order accordingly. 21 In the event that I am wrong about that, it is appropriate to deal with the merit arguments. In that regard, Mr Nicholls submits that the Applicant's dismissal is attended by both procedural and substantive unfairness. As to the former, it is said firstly, that the failure on the part of Acting Deputy Commissioner Collins, when asked, to provide to the Applicant documentary and other source material relating to allegations against her constitutes procedural unfairness. Secondly, it is said that the terms in which the dismissal order are expressed make it clear that the Applicant's comprehensive response to the show cause notice was not considered or taken into account by Deputy Commissioner Madden in deciding to dismiss the Applicant and that the failure to do so constitutes further unfairness of a procedural nature. 22 Mr Nicholls submits as to substantive matters, that the Commission would have regard not only to the parlous circumstances in which the Applicant finds herself since being dismissed in March 2005 but also to the fact that she was suspended without pay at the Commissioner's discretion from December 2004 in consequence of which she was forced to sell her house, store most of her belongings and move into a friend's garage where she presently resides as a single parent with her two children. I note in that regard that the Applicant has been unable to secure employment in the local community and has been in receipt of Centrelink payments at all material times. 23 It is further submitted on the Applicant's part whilst in no way understating the seriousness of the drink-driving offence that the consequences of dismissal for the Applicant on the basis of that offence are disproportionate to the gravity of the misconduct. I apprehend that harshness may also be demonstrated in terms of the personal and economic consequences for the Applicant which flow from the dismissal (see Byrne and Frew v Australian Airlines Limited (1995) 185 CLR 410 at 465). 24 Mr Nicholls points to the remorse and sorrow expressed by the Applicant for her wrongdoing and by implication, to the fact that she has been punished for such wrongdoing by the sentence imposed in December 2004 in the Nowra Local Court. Mr Nicholls also points to the inconsistency of approach by NSW Police in dealing less harshly with at least two other probationers who had been convicted of drink-driving offences in arguably more culpable and serious circumstances than those applying to the Applicant. The details of those two cases are contained in material produced by the Commissioner under summons and marked as Exhibit 10 in the proceedings and to the extent that it is unnecessary to recite those details for the purpose of these reasons, it will suffice to say that I accept that the two cases demonstrate by way of clear example an inconsistency of approach by the Commissioner in his manner of dealing much more harshly with the Applicant than with others in analogous circumstances. 25 Although, as Mr Reitano acknowledges, the Applicant was dismissed ostensibly by reason of her drink-driving offence there are a number of other conduct issues raised against her which were ventilated in the course of the debate and which may be regarded if I understood the Respondent's position correctly, as integrity issues going to the Applicant's fitness to continue as a serving police officer. 26 The first of those issues was described as a prior alcohol-related issue which occurred during her period of training at the NSW Police College at Goulburn. The Applicant went out to a twenty-first birthday celebration and slept through her alarm thereby missing parade the next morning. Although her absence was undetected, she reported it as a matter of honesty and good conscience. She was cautioned that any further adverse incident particularly any alcohol-related occurrence or traffic matter would result in a review of her "professional suitability status", presumably her professional suitability for employment as a police officer. It is unclear even if, as the Respondent submits, the incident was properly categorised as an alcohol-related issue, why the reprimand should extend to traffic matters. At all events, the Applicant said she regarded the matter as a closed matter and was surprised to learn when served with the Respondent's material in May 2005 preparatory to hearing, that the matter was given currency as a so-called alcohol-related issue beyond her time at the college and was passed on in the form of a report to the Local Area Commander at Shoalhaven where she was later stationed. 27 A second issue arose at the NSW Police College where briefly described, the Applicant was overheard by a fellow student having highly-charged and emotional telephone conversations with her ex-husband and her mother in the lead up to her graduation ceremony or attestation parade as it is called. She was interviewed by the College Commander and the College Chaplain and (unbeknown to the Applicant until served with the Respondent's material in May 2005) a report was created which was then provided to the Shoalhaven Local Area Commander. I will return to the contents of the report shortly. 28 A third issue of which the Applicant only became aware from material served on her a week before the matter was heard on 15 June 2005, concerns an allegation that she attempted improperly to persuade police on 29 September 2004 not to arrest or charge her. 29 A fourth issue which was raised in the show cause notice involves an allegation that the Applicant falsely accused Senior Constable Kneeshaw (with whom she was in a relationship) of drink driving on the night she was apprehended. As earlier observed, an arrangement was reached with the Applicant's solicitors on 9 February 2005 whereby the Applicant was not required to address that allegation indicating on any reasonable view, that the allegation was to form no part of the factual matrix relied upon by the Respondent in considering whether to dismiss her. 30 It is appropriate at this point to observe that each of the four matters described above were canvassed by or with the Applicant in the course of evidence notwithstanding that none of them were ultimately disclosed to her by the Respondent in anything but the most oblique way as matters which formed the basis or which would be taken into account in the consideration of her dismissal and with every respect to the vigorous contention of Mr Reitano that the Applicant cannot say she was surprised that these matters are now raised against her, I consider that the Respondent failed in its obligation to squarely raise with the Applicant all matters that were within its contemplation at the time of dismissal; that were plainly regarded as being adverse to her and that were in any way to be relied upon in dismissing her. 31 That is not to say the Commissioner is necessarily under an obligation to provide or make available to the Applicant all of the documentary and other source material relied upon in dismissing her prior to dismissing her and as much was made clear by the observations of Boland J in Hosemans v NSW Police (No3) [2005] NSW IR Comm 161 where his Honour said at [158] - [160]: 158 The applicant placed reliance on Humphries v Cootamundra Ex-Services & Citizens Memorial Club Limited (2003) 128 IR 37 where it was said at [118]:

118 This matter demonstrates the very real problems that may arise where there is a failure to afford procedural fairness. The obligation upon parties to ensure procedural fairness is not a hollow one and must not be construed as having only technical significance. As the circumstances in this case demonstrate and the provisions of s88 of the Act establish, such considerations may have a very real impact on unfair dismissal proceedings and are of significance in identifying whether a termination was harsh, unreasonable or unfair. Indeed, in this case it is unlikely the matter would have travelled as far as it has if the records had been provided at an appropriate time during the interview process or at any other reasonable time prior to the hearing of the matter. In this context, we consider the denial of access to the actual documents forming the substance of the allegations to be most serious. 159 There is nothing in the above passage that supports the proposition that in unfair dismissal cases there is a duty on the employer to provide evidence and all documents which are requested by an employee prior to a decision to terminate. It may be, in particular circumstances, the failure of an employer to provide a document or material to an employee prior to making any decision to terminate the employment will amount to procedural unfairness. But Humphries is not authority for the proposition that there is a blanket obligation to provide to the employee all documents that may have a connection with the subject matter associated with the reasons for the termination.

160 I do not consider there is any obligation on the Commissioner to provide, at any stage, documents or material that might be requested by an applicant that have not been relied on by the Commissioner in coming to a decision about whether he has lost confidence in a police officer. As to a request by a police officer for a document or material that the officer asserts he or she needs to be able to respond adequately to a Notice under s 181D, if the Commissioner has relied on that document or material in formulating the grounds in the Notice, and it is reasonably apparent that in the interests of procedural fairness the officer should have that document or material, which is not otherwise available to the officer, it may be appropriate for that document or material to be provided. The Commissioner cannot have a significant objection to this idea because in this case the applicant was provided with the Commissioner's Confidence Submission at the time he was served with the Notice. 32 What is required however, must be sufficient to inform the person being invited to respond, about the nature of any and all allegations that may count against them and as his Honour observes at [160] above, any document or material which is not available to the officer and which it is reasonably apparent the officer should have in the interests of procedural fairness. 33 In this case, the Applicant was entitled to believe that the only matter relied upon by the Respondent in deciding to dismiss her was the matter referred to in the dismissal order in the following terms: By this Order I remove you from the New South Wales Police. In reaching my decision I have given careful consideration to the matters in the Show Cause Notice. I am satisfied that the following matter demonstrates your failure to meet the standards required by NSW Police in order to hold the office of Constable of Police, namely - 1. Conduct and Integrity in that: a) About 4.15am 29 September 2004 you drove a motor vehicle with the high range of prescribed concentration of alcohol. Your dismissal takes effect from the date of this order. 34 In making that observation, I bear in mind the provisions of s 73(3) of the Police Act 1990 which clearly permit the dismissal of a probationer at any time and without the necessity to give reasons but equally clearly, those provisions do not operate to preclude the processes of putting allegations potentially adverse to the probationer; providing that probationer with an opportunity to respond with potentially exculpatory effect and then after due consideration providing the probationer with the grounds upon which a dismissal or decision to dismiss is based. 35 That being so, it makes no sense having embarked upon such a course, to present the probationer with only part of the subject matter relied upon in consideration or justification of dismissal and that seems to me to be what happened here. For example, it was never put to the Applicant until she was served with the Respondent's evidentiary material in May 2005 that her failure to attend parade on one occasion at the NSW Police College was to be stereotypically categorised as an alcohol related issue and I note in that regard that the report provided by the college to the Local Area Commander at Shoalhaven makes reference to alcohol related issues in the plural, indicating to the objective reader of the report that the Applicant may have some form of chronic alcohol problem. The evidence did not reveal this and although the Applicant was taken in cross-examination to the fact that the letter of caution issued by the college authorities made reference to the consumption of alcohol in the context of sleeping in the next morning, it does not follow in my opinion as a matter of fairness that the incident should lead to a report being provided to the Local Area Commander branding the Applicant as a person who was struggling with some form of alcohol affliction. I accept, as the Applicant said, that she considered the single incident as a lateness issue; that it was never suggested to her or required of her that she should attend for alcohol counselling and that she thought until the Respondent's material was served upon her, that the college authorities felt likewise. 36 I further accept the Applicant's unchallenged evidence that in 23 years of driving including 13 years as a lead singer in a band involving regular attendance at licenced premises, she had never previously driven after consuming alcohol. This strongly suggests to me that the Applicant was entitled again as a matter of fairness, to have the drink-driving incident of 29 September 2004 treated as one-off incident and not as part of a pattern of so-called alcohol related issues. 37 As to the second issue regarding threats of violence by shooting allegedly made by the Applicant in the course of a heated telephone conversation, the Applicant strenuously denies ever having made or having at any time admitted making the threats attributed to her by a fellow student and later embodied in a report prepared by the college authorities. Prior to the Respondent's material being served upon her in May 2005 she was unaware that a report involving such allegations had been created and as earlier observed, unaware that it had been sent to the Local Area Commander. Leaving aside for the moment the question whether as a matter of fairness, the Applicant should have been shown and given an opportunity to comment upon the report before it was circulated and used against her, it seems inconsistent with the making of such threats that she would then be issued with and authorised to use a firearm. It is more likely I think as the Applicant said, that she indicated and was overheard to indicate in the course of an emotionally charged telephone conversation that she did not care if something happened to her ex-husband rather than that she intended personally to harm the ex-husband or anyone else by shooting them. 38 As to the remaining issues raised in the served material and as with other issues dealt with above, reports were created on this occasion by Acting Local Area Commander Mura and by arresting officer LSC Fatima reciting among other things, an allegation that the Applicant had made improper overtures to police on 29 September 2004 in order to avoid arrest. 39 Chief Inspector Mura prepared his report on 7 October 2004 by way of notification to the NSW Police Employee Management Branch presumably as a means of initiating or at least as part of the review process leading ultimately to the Applicant's dismissal. In the section entitled "Commander's Comments" the following appears: Commander's Comments: The Probationer came under notice whilst conducting her studies at the Police College on two occasions. One of the occasions involved alcohol, the other involved serious threats involving firearms. Not withstanding these two incidents the Probationer was allowed to attest with her class. It is interesting that the Probationer has taken little notice of the warning letter sent to her by Senior Sergeant MARCHET involving alcohol issues and warning her that any further adverse incident will result in her professional suitability status being reviewed. Some four weeks after her attestation the probationer was arrested and issued a Future CAN for the offence of High Range PCA, 0.160, a most serious offence. During the arrest she has made false allegations towards another member of the service and has attempted to use her office together with her financial situation, in an effort to persuade arresting Police to overlook the offence. (emphasis added) 40 LSC Fatima recited the allegation among other things, in a statement he made on 10 January 2005 in the following terms: On the 28th of September 2004 I was rostered on as the Team Leader, Supervisor to commence my shift at 6:00 p.m. About 4.10 a.m. on the 29th of September 2004 I received a phone call from Constable Guthrie. He then told me something. As a result I spoke to Senior Constable Venees and we both drove to the Princes Hwy South Nowra where I saw Shoalhaven 18 parked on the eastern side of the Princes Hwy opposite the brickworks. I then pulled over behind Shoalhaven 18. I approached the vehicle and saw Constable Angus in the drivers side and Constable Guthrie in the front passenger seat. I also saw the defendant Vicki Ferraris in the back seat. The defendant Vicki Ferraris then got out of the car and she approached me. I then quickly spoke to Constable Guthrie. The defendant then said to me, "Just take me home Carlos. I have worked three years to be a copper. Don't do this to me just take me home." I said, "How much have you had to drink?" She did not reply. At the same time off duty Senior Constable Andrew Kneeshaw pulled over on the western side of the road along the Princes Hwy. The defendant again said, "Don't do this to me Carlos, I have been trying for three years to join the job, just let me go." I said, "I can't do that." The defendant then said, "Andy is three times more pissed than I am, you want to talk to him." I then walked away from the defendant and left her in the company of Constable Angus and Guthrie. I approached Andy Kneeshaw and spoke to him. At the time I could not smell any alcohol on him. Andy Kneeshaw then told me something and as a result I waked back to the vehicle. I then turned around and saw Andy Kneeshaw drive off. The defendant Vicki Ferraris then said to me, "Are you letting him go, are you?" I said, "Vicki you are under arrest for the purpose of returning to Nowra for a breath analysis." Vicki Ferraris said, "So why am I getting arrested and you let Andy Kneeshaw go. That's right a senior Constable gets away with it and a Probationary Constable gets charged." I said "He hasn't been drinking." I then got back in the car and drove north along the Princes Hwy to catch up to Andy Kneeshaw however I could not locate him. About 15 minutes later I returned to Nowra Police Station. I then received a phone call from Andy Kneeshaw and I told him something. As a result of our conversation I approached Sergeant Johnson and I told him something. I then left the station and walked to the back car park and I could hear the defendant Vicki Ferraris call out, "I can hear you Carlos come and talk to me." Sergeant Johnson and I then attended 31 Streamside Street Wollomia about 30 minutes later. At that location I breath tested Andy Kneeshaw which indicated 000 reading. Sergeant Johnson and I then left the location and returned to Nowra Police Station. 41 Whilst the Applicant does not deny making reference to Senior Constable Kneeshaw having consumed alcohol, she strenuously denies attempting to persuade police not to arrest her and she strenuously denies that her reference to Senior Constable Kneeshaw consuming alcohol constituted a false allegation against a fellow police officer. Rather, she was adamant that Senior Constable Kneeshaw consumed alcohol at her home prior to driving off in his car after a disagreement and she was unable to explain how a breath test to which Senior Constable Kneeshaw subsequently submitted returned at .000 reading. She said she only raised the issue of Senior Constable Kneeshaw's drinking because she believed it to be true and because she was emotionally upset. I accept her evidence in that regard and would tend on balance, to accept her denial that she made improper overtures in order to avoid arrest. Certainly, there was no mention of such overtures in the contemporaneous police notebook entry made by LSC Fatima and one would have thought that such a matter, if it occurred in the manner described by LSC Fatima would have been recorded along with other events that night, in the police notebook. Further, there is no mention of such overtures in the incident report prepared by Constable Guthrie who was present at the time the overtures were allegedly made. 42 Be that as it may, the plain facts are that there was a raft of issues taken into account in the processes leading up to the Applicant's dismissal which were not put to her in the show cause letter and which in their entirety, are issues about which the Applicant had much to say in mitigation had she been afforded the opportunity. 43 I am of the view that the failure to afford the Applicant an opportunity to respond to all matters which were taken into account in the dismissal process constitutes significant procedural unfairness particularly given the fact that the Respondent purported to provide such an opportunity in the show cause letter. 44 I am also of the view without in any way understating the seriousness of the Applicant's misconduct on 29 September 2004, that there is a harshness about the ultimate sanction of dismissal in this case in terms of its consequences for the personal and economic situation of the Applicant and in terms of its disproportion to the gravity of the misconduct. The dismissal is also harsh by comparison and inconsistent with the treatment of other probationers in more culpable circumstances involving drink-driving offences. 45 For those reasons and in the event that I am wrong about the jurisdictional incompetence of the application, I find the Applicant's dismissal to be procedurally and substantively unfair. 46 Again in the event that I am wrong about the jurisdictional issue I make the following order: 1. The Applicant be reinstated to her former position forthwith 47 Having regard to the Applicant's misconduct and to the serious nature of it, I make no orders as to back pay or continuity of service. These proceedings are concluded accordingly.

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Industrial Relations Act 1988(Cth)

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Judgment (24 paragraphs)

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Cases Cited (6)

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